CYBERCON INC. MASTER SERVICE AGREEMENT
This Master Services Agreement (this “Agreement”) is between Cybercon Inc., a Missouri Corporation (“Cybercon”), and you, the individual or entity (the “Customer”) who electronically or physically signs this Agreement and an Order Form as defined below) that references this Agreement. This Agreement is effective as of the latest date of the signatures of the parties on this document (“Effective Date”).
- Services: In consideration for the payments to be made by the Customer pursuant to the terms of this Agreement and the Order Form (as defined below) attached as Exhibit “A”, Cybercon will provide Customer services for commercial and research uses via Cybercon’s network facilities and Network Operating Center professionals (the “Services”), which will be operated seven days per week, twenty-four hours per day (excluding scheduled maintenance) with service availability of not less than 99.7%. The Services provided by Cybercon are subject to all of the terms and conditions of this Agreement. Each Order Form, upon execution by both of the Parties, will be governed by the terms and conditions of this Agreement. In the event of any conflict between the terms of the Order Form and the terms of this Agreement, the terms of the Order Form shall prevail to the extent of such conflict.
- Payment: In consideration for the Services to be provided by Cybercon, the Customer shall pay to Cybercon a fee (either non-recurring or monthly) in accordance with the Cybercon fee schedule indicated on the service order form (the “Order Form”). Payment shall be due immediately upon the Customer’s receipt of Cybercon’s monthly invoice. Alternatively, payment shall be made by automatic credit card charging (Auto charge). Cybercon is hereby authorized to make automatic monthly charges on the first day of each calendar month against the Customer’s credit card. This authorization shall be cancelable by Customer via written notice to Cybercon, delivered either by web form entry at Cybercon client portal: https://clients.cybercon.com, facsimile transmission, or the United States Postal Mail, first-class postage prepaid.
- Term: The term of this agreement shall be determined by Cybercon’s Order Form. Unless otherwise provided in the Order Form, this Agreement (including any renewal terms) shall automatically renew for successive twelve (12) month periods unless either party gives written notice to the other party of their intention to terminate this agreement at least thirty (30) days before the current term ends.
Cybercon may cancel this Agreement, Order From and the Services without notice upon (i) Customer’s failure to pay any amounts invoiced hereunder within fifteen (15) days after the date of the invoice, or (ii) Cybercon’s determination, in its reasonable discretion, that Customer has used the Services fraudulently, unlawfully or abusively, and has failed or refused to cease such fraudulent, unlawful or abusive use,(iii) credit is refused to Cybercon on any monthly charge when Customer is paying monthly fees on an Autocharge basis, and such credit is not reinstated; or (iv) Customer’s failure or refusal to cure any breach of this Agreement (other than as mentioned above) within fifteen (15) days after written notice of such breach has been given by Cybercon to Customer. Upon such cancellation, Cybercon shall remove all of Customer’s electronically stored data from Cybercon’s facilities without liability of any kind to the Customer.
- Restrictions: The Services, and Customer’s use of the Services, are subject to the following restrictions:
a. Inappropriate Content Prohibited. Customer’s use of the Services shall not constitute libel or defamation of character, nor infringe on any copyright, trademark or patent, nor shall it violate
(i) any trade secret or other intellectual property right of any third party, or
(ii) any federal, state, or local law, regulation or ordinance, including those pertaining to obscenity, applicable in an area where the content can be viewed or retrieved;
b. Acceptable Use Policies (AUPs). Customer shall at all times during the use of the Services abide by Cybercon’s AUPs as established and modified from time to time at http://www.cybercon.com/aup, and the AUPs of all other networks which Customer may traverse in the course of its use of the Services;
In the event that Customer violates any of these restrictions, Customer shall indemnify and hold harmless Cybercon and its directors, officers, shareholders, agents and contractors from and against any and all allegations, claims, expenses (including reasonable attorneys’ fees), liability or suits made, threatened or brought in relation to or arising from such violation.
- INDEMNIFICATIONS AND LIABILITY:
a. Customer shall defend, hold harmless and indemnify Cybercon and its affiliates, officers, partners, agents and employees from all claims, demands, actions, damages, judgments, expenses, costs (including reasonable attorney’s fees), and liabilities arising out of Customer’s access to or use of Cybercon’s premises or IP Network.
b. Cybercon assumes no liability for damage to, or loss of, the equipment or Customer property resulting from any cause whatsoever, except as a result of Cybercon’s gross negligence or willful misconduct.
c. Cybercon shall not be liable to Customer for any indirect, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits, regardless of the form of action, whether in contract, indemnity, warranty, strict liability, or tort, including negligence of any kind with regard to any conduct under this Agreement.
- Disclaimer of Warranties: Cybercon exercises no control whatsoever over the content, accuracy, or quality of the information passing through its network or any products ordered by Customer via its network. The Services and any information or products obtained by Customer through the Services are provided “AS IS” without any warranties whatsoever, express or implied. The warranties of merchantability and fitness of the Services, such information and products for a particular purpose are hereby specifically disclaimed.
- Limitation of Liability: In no event shall either party be liable to the other for any indirect, incidental or consequential damages arising out of or in relation to this Agreement or the Services, including, but not limited to, damages incurred by Customer resulting from loss of data, due to delays, non-deliveries, misdeliveries or interruptions in Service, regardless of the cause.
- Force Majeure: Neither party shall be considered in default of its obligations hereunder (except the payment of money, which shall not be excused) if performance of such obligations is prevented or delayed by an act of God, the elements, adverse weather conditions, earthquakes, fire, flood, riots, strikes, accident, epidemics, pandemics, war, governmental requirement or any action of the government in its sovereign capacity, the act of civil or military authority, action or inaction of a supplier or other third party, inability to secure materials, labor or transportation, or any other cause or circumstance, whether of a similar or dissimilar nature to the forgoing, beyond the reasonable control and without the fault or negligence of the affected party.
- Early Termination Charges: If Customer terminates a Service, or any portion thereof, during a Term, as stated in such Order Form, such termination shall not be effective until thirty (30) days after Cybercon receives written notice of termination ( the “Termination Effective Date” ), and Customer will pay, within fifteen (15) days after such termination notice: (i) all accrued but unpaid charges for the Service(s) incurred through the Termination Effective Date, plus (ii) an amount equal to (i) 75% the total of the fees for the Service(s) remaining in the Term based on the Term as stated in the Order Form, plus (ii) all expenses incurred by us in our preparation and provision of the Service(s) to you. Customer shall provide notification of its termination of the Service by sending such notification via the web form at https://smc.cybercon.com or certified United States Postal Mail, postage prepaid.
- Assignment: Cybercon may assign this Agreement to any subsidiary, parent, or affiliated company or to a successor company pursuant to any reorganization or merger of its business, or to any successor pursuant to any sale or transfer of all or substantially all of its assets. No other assignment by either party will be permitted without the prior written consent of the other party, which consent will not be unreasonably withheld or denied. The rights and obligations under this Agreement shall survive any merger or sale of either party and shall be binding upon the successors and permitted assignees of each party.
- Governing Law. This agreement shall be governed by and construed in accordance with the laws of Missouri of the United States, without regard to its principles for resolving conflicts of law. The parties agree that any actions arising under this agreement shall be brought exclusively in the United States District Court for Missouri. Each party agrees to submit itself to the jurisdiction and venue of such courts for purposes of any such action.
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The Parties agree to the terms of this Agreement, including the Order Form which are incorporated herein and made a part hereof.
- Term. The Term of this Order Form shall begin on the Effective Date and be for one (1) year from the Effective Date (“Initial Term”) and automatically renew for subsequent one (1) year periods (each a “Renewal Term”) unless Customer delivers a written notice of its intent not to renew within thirty (30) days of the expiration of the Initial Term or then active Renewal Term. The Initial Term plus each Renewal Term shall collectively be referred to as the “Term”.
- Incorporation by Reference. The provisions of the Master Services Agreement and the related definitions (unless otherwise specified herein) are incorporated by reference herein and shall be deemed to have the same force and effect as if set forth in full herein.
- Acknowledgment of Early Termination Charges. Customer acknowledges and agrees that the Customer has read Section 9 of the Agreement and agrees to abide by such terms and conditions stated therein.